This
miscellaneous action began six years ago when Petitioner, the
United States Department of Treasury
(“Treasury”), moved to quash Dennis Black,
Charles Cunningham, Ken Hollis and the Delphi Salaried
Retirees Association's (collectively,
“Respondents”) subpoena requesting documents
related to Treasury's involvement in the termination of
Respondents' pension plan. That subpoena arose from a
civil action that began nine years ago and is currently
pending in the United States District Court for the Eastern
District of Michigan. In the civil action, Respondents allege
that the Pension Benefit Guaranty Corporation illegally
terminated Delphi's pension plan for its salaried
workers, via an agreement with Delphi and General Motors,
because of improper pressure exerted by Treasury.

In the
last four years, the Court has evaluated Treasury's
various claims of privilege and has conducted in
camera review of hundreds of documents related to
multiple rounds of briefing. Pending before the Court is the
Respondents' renewed motion to compel the production of
61 documents withheld by Treasury under a claim of the
presidential communications privilege. Upon consideration of
the renewed motion, response and reply thereto, the relevant
case law, and the entire record, and for the reasons set
forth below, the motion is GRANTED in PART and DENIED
in PART.

I.
BACKGROUND

A.
Statutory Background

In 1974
Congress passed the Employee Retirement Income Security Act
(ERISA) with the goal of safeguarding employees against the
loss of expected retirement benefits. 29 U.S.C. § 1301
et. seq. In passing this law, “Congress wanted to
guarantee that ‘if a worker has been promised a defined
pension benefit upon retirement--and if he has fulfilled
whatever conditions are required to obtain a vested
benefit--he actually will receive it.'” PBGC v.
R.A. Gray & Co., 467 U.S. 717, 720 (1984) (citations
omitted). To that end, Title IV of ERISA created the Pension
Benefit Guaranty Corporation (“PBGC”) “a
mandatory Government insurance program that protects the
pension benefits of over 30 million private-sector American
workers who participate in plans covered by the Title.”
PBGC v. LTV Corp., 496 U.S. 633, 637 (1990). The
PBGC is a “wholly owned Government corporation within
the Department of Labor.” R.A. Gray & Co.,
467 U.S. at 720. The Board of Directors of the corporation
“consists of the Secretary of the Treasury, the
Secretary of Labor, and the Secretary of Commerce.” 29
U.S.C. § 1302(d)(1).

Title
IV of ERISA expressly defines the purposes of the PBGC. These
purposes are threefold and are aimed at protecting pension
participants. The first enumerated purpose is to
“encourage the continuation and maintenance of
voluntary private pension plans for the benefit of their
participants.” 29 U.S.C. § 1302(a)(1). The second
purpose is to “provide for the timely and uninterrupted
payment of pension benefits to participants and
beneficiaries.” Id. § 1302(a)(2). The
last enumerated purpose is “to maintain premiums . . .
at the lowest level consistent with carrying out its
obligations.” Id. § 1302(a)(3). As these
purposes illustrate, the PBGC is entrusted by Congress, and
by the public through its representatives, with the task of
“ensur[ing] that employees and their beneficiaries
would not be deprived of anticipated retirement benefits by
the termination of pension plans before sufficient funds have
been accumulated in the plans.” R.A. Gray &
Co., 467 U.S. at 720 (citations omitted).

Termination
cannot be avoided at all costs, however. The Act recognizes
that under certain circumstances a plan must be terminated in
order to “protect the interests of the participants or
to avoid any unreasonable deterioration of the financial
condition of the plan or any unreasonable increase in the
liability of the fund.” 29 U.S.C. § 1342(c)(1);
see also LTV Corp., 496 U.S. at 641 (recognizing
some plans must be terminated to “protect the insurance
program from the unreasonable risk of large losses.”).
As the Act explains, ”[the PBGC] may institute
proceedings . . . to terminate a plan whenever it
determines” that inter alia, the “plan
has not met the minimum funding standard required, ”
“the plan will be unable to pay benefits when due,
” or “the possible long-run loss of the
corporation with respect to the plan may reasonably be
expected to increase unreasonably if the plan is not
terminated.” 29 U.S.C. § 1342(a)(1)-(4). If the
PBGC has determined that the plan should be terminated,
“it may, upon notice to the plan administrator, ”
apply to the appropriate U.S. district court for a
“decree adjudicating that the plan must be terminated
in order to protect the interests of the participants or to
avoid any unreasonable deterioration of the financial
condition of the plan or any unreasonable increase in the
liability of the fund.” Id. § 1342(c)(1).

B.
Factual Background

Respondents
in this miscellaneous action are retired salaried employees
of the Delphi Corporation (“Delphi”), an
automotive supply company, and an association of retired
salaried employees of Delphi. Respondents are also plaintiffs
in Black v. PBGC, No. 09-13616, a civil action
pending in the United States District Court for the Eastern
District of Michigan (“civil action”) since 2009.
In that civil action, Respondents alleged that the PBGC
violated Title IV of ERISA and the United States Constitution
when it was forced to wrongfully terminate Respondents'
pension. Respondents' theory of the case is that the
“termination occurred as the result of politics, with
Treasury having impermissibly pressured the PBGC to acquiesce
in the Plan's termination as part of Treasury's
political goals in restructuring the auto industry in
general, and GM in particular.” Renewed Mot. Compel,
ECF No. 70 at 10.[1]Treasury is not a part of the civil action.

This
miscellaneous action began when Treasury moved to quash a
subpoena duces tecum served by the Respondents
seeking information related to its claims in the civil
action. Treas. Mot. Quash, ECF No. 1. Specifically, the
subpoena sought all documents and things received by,
produced or reviewed by certain Treasury employees between
January 1, 2009 and December 31, 2009 related to “(1)
Delphi; (2) the Delphi Pension Plans; or (3) the release and
discharge by the [PBGC] of liens and claims relating to the
Delphi Pension Plans.” Id. at 252-53.

In a
Memorandum Opinion dated June 19, 2014, ECF No. 27, this
Court ruled that Treasury had failed to meet its burden under
Federal Rules of Civil Procedure 26 and 45 to quash the
subpoena duces tecum and therefore denied the motion
to quash. Treasury responded to the subpoena by withholding
or redacting 1, 273 documents under four separate claims of
privilege: (1) the deliberative process privilege; (2) the
presidential communications privilege; (3) the
attorney-client privilege; and (4) the work-product
privilege. See generally Mot. Compel, ECF. No. 30.
Although Treasury asserted privilege for over 1, 000
documents, Respondents only challenged the claims of
privilege for 866 documents. Treas. Opp'n, ECF No. 35 at
9.

The
Court ordered in camera review of all the documents
at issue to better evaluate Treasury's claims of
privilege. See Minute Entry of July 15, 2016. Ten
days later, Treasury produced, in camera, hard
copies of the contested documents noting that “[i]n
preparing its production, Treasury decided not to continue
withholding certain documents.” See Notice of
Production, ECF No. 40 at 1. Treasury revoked its claims of
privilege over nearly 640 of the 866 contested documents
without providing any explanation as to why it suddenly
withdrew its claim of privilege over nearly 75% of the
documents it previously claimed were protected from
disclosure. See id.

After
reviewing the remaining documents in camera, in a
Memorandum Opinion dated December 20, 2016, the Court
concluded that Treasury failed to provide a specific
articulation of the rationale supporting the deliberative
process privilege and ordered Treasury to produce to
Respondents all of the documents over which it asserted
solely the deliberative process privilege. Mem. Op., ECF No.
42 at 6-13. The Court further ordered Treasury to submit an
updated in camera production and privilege log
containing the documents withheld under the other three
privileges. Id. at 13.

Treasury
submitted 85 documents in response to the Court's Order.
See Mem. Op., ECF No. 45 at 3. Relevant to this
renewed motion to compel, Treasury asserted the presidential
communications privilege as the basis for withholding 63
documents from production. Id. at 4. In a Memorandum
Opinion dated April 13, 2017, the Court concluded that the
documents were covered by the presidential communications
privilege, but that Respondents had demonstrated a sufficient
need for the documents to overcome the privilege.
Id. at 3-11. Accordingly, the Court ordered
production of the 63 documents over which Treasury had
asserted the presidential communications privilege produced
to Respondents. See Order, ECF No. 44 at 1.

Treasury
appealed the Court's Order, and the Court of Appeals for
the District of Columbia Circuit (“D.C. Circuit”)
remanded the case back to this Court. U.S. Dep't of
Treasury v. Black, No. 17-5142, 2017 WL 6553628, (D.C.
Cir. Dec. 8, 2017). Specifically, the D.C. Circuit remanded
the case for this Court to “account for how the public
interests in this case” differ from prior decisions in
which courts have analyzed the presidential communications
privilege, id. at *1, and to “thoroughly
analyze whether [Respondents] demonstrated a need sufficient
to overcome the privilege, ” id. at *3.

Respondents
have since filed a renewed motion to compel challenging 61 of
the 63 documents over which Treasury claims the presidential
communications privilege.[2] The documents can be grouped into three
categories: (1) Draft memoranda from staffers to Dr. Lawrence
Summers, the Director of the National Economic Council,
Assistant to the President for Economic Policy, and co-chair
of the Presidential Task Force on the Auto Industry
(“Auto Task Force”), providing updates regarding
GM and Delphi; (2) electronic mail conversations among
federal employees that supported Dr. Summers and the Auto
Task Force (“Auto Team members”) concerning
advice provided to President Obama regarding GM, Delphi, and
the PBGC; and (3) personal requests for information by
President Obama about the Delphi Salaried Plan, along with
Treasury emails and a memorandum in response. Renewed Mot.
Compel, ECF No. 70 at 28. Treasury filed its opposition to
Respondents' motion to compel, ECF. No. 74, and
Respondents subsequently filed their reply in support, ECF
No. 75. The motion is now ripe for decision.

II.
LEGAL STANDARD

The
presidential communications privilege is a “presumptive
privilege” necessary to “guarantee the candor of
presidential advisers and to provide ‘a President and
those who assist him . . . with freedom to explore
alternatives in the process of shaping policies and making
decisions and to do so in a way many would be unwilling to
express except privately.'” In re Sealed
Case, 121 F.3d 729, 743 (D.C. Cir. 1997) (alterations
omitted) (quoting United States v. Nixon, 418 U.S.
683, 708 (1974)). The privilege “is rooted in the need
for confidentiality to ensure that presidential
decisionmaking is of the highest caliber, informed by honest
advice and full knowledge.” Id. at 750. This
confidentiality is important because it is “what
ensures the expression of ‘candid, objective, and even
blunt or harsh opinions' and the comprehensive
exploration of all policy alternatives before a presidential
course of action is selected.” Id. (citation
omitted).

Although
entitled to great weight because of the need for
confidentiality, the presidential communications privilege
should be construed as “narrowly as is consistent with
ensuring that the confidentiality of the President's
decisionmaking process is adequately protected.”
Id. at 752. Moreover, assuming arguendo a former
president may assert the privilege, “such a claim
carries much less weight than a claim asserted by the
incumbent himself.” Dellums v. Powell, 561
F.2d 242, 247 (D.C. Cir. 1977). Ultimately, the application
of the privilege “depends on a weighing of the public
interest protected by the privilege against the public
interests that would be served by disclosure in a particular
case.” In re Sealed Case, 121 F.3d at 743
(citation omitted). In the context of civil discovery, a
court must assess “the public interests at stake in
determining whether the privilege should yield in a
particular case, and must specifically consider the need of
the party seeking privileged evidence.” See
Id. at 746.

The
D.C. Circuit has had several occasions to discuss the
presidential communications privilege in various
circumstances. In Nixon v. Sirica, the D.C. Circuit
discussed the application of the privilege in the criminal
context. 487 F.2d 700 (D.C. Cir. 1973). Sirica
concerned a subpoena issued by a grand jury investigating the
break-in at the Watergate Hotel for certain tape recordings
of telephone conversations that had taken place between
President Nixon and his advisors. Id. at 704-705.
Nixon refused to produce the tape recordings asserting the
presidential communications privilege. Id. at 705.
The D.C. Circuit explained that the claim of privilege
“depend[ed] on a weighing of the public interest
protected by the privilege against the public interests that
would be served by disclosure in a particular case.”
Id. at 716. In weighing those interests, the Court
recognized that there was a great public interest in
preserving “the confidentiality of conversations that
take place in the President's performance of his official
duties” in order to protect “the effectiveness of
the executive decision-making process.” Id. at
717. The Court held, however, that the privilege was overcome
because of the “showing made by the Special
Prosecutor” in that case. Id. Specifically,
the Special Prosecutor had made a “strong showing that
the subpoenaed tapes contain[ed] evidence” necessary to
the carrying out of a vital function of the grand jury which
was to “indict persons when there is probable cause to
believe they have committed crime, but also to protect
persons from prosecution when probable cause does not
exist.” Id. at 717. Accordingly, the Court
held the district court could order disclosure of portions of
the tapes relevant to the scope of the grand jury
investigation. Id. at 721.

The
Supreme Court addressed the presidential communications
privilege in the context of a criminal case a year later in
United States v. Nixon, 418 U.S. 683 (1974).
Nixon also concerned a subpoena by a grand jury for
several tape recordings and documents relating to President
Nixon's conversations with his advisors. Id. at
688. The Court noted that President Nixon did not place his
“claim of privilege on the ground that [the
communications were] military or diplomatic secrets.”
Id. at 710. After determining that the public
interest at stake was the “President's generalized
interest in confidentiality” the Court weighed this
“generalized interest” against “the inroads
of such a privilege on the fair administration of criminal
justice.” Id. at 711-12. In weighing these
interests, the Court concluded that although the
“interest in preserving confidentiality . . . is
entitled to great respect . . . the allowance of the
privilege to withhold evidence that is demonstrably relevant
in a criminal trial would cut deeply into the guarantee of
due process of law and gravely impair the basic function of
the courts.” Id. at 712. Accordingly, the
Court remanded the case for the district court to determine,
via in camera review, what relevant and admissible
evidence in the tapes would be released to the Special
Prosecutor. Id. at 713-14.

Of most
relevance to this case, the D.C. Circuit first considered the
presidential communications privilege in the civil context in
Dellums v. Powell, 561 F.2d 242 (D.C. Cir. 1977).
Dellums concerned a subpoena for tapes and
transcripts of White House conversations in connection with
claims that plaintiffs were unconstitutionally detained for
protesting American military involvement in Southeast Asia.
561 F.2d at 244. Although not a party to the case, President
Nixon moved to quash the subpoena under a claim of the
presidential communications privilege arguing that the
privilege was absolute in the civil context. Id.
After taking note that President Nixon's claim of
privilege did not concern “a claim of a need to protect
national security, military or diplomatic secrets, ”
the Court “reject[ed] Mr. Nixon's contention that a
formal claim of privilege based on the generalized interest
of presidential confidentiality, without more, works an
absolute bar to discovery of presidential conversations in
civil litigation.” Id. at 245-46.

Rather
than employing an absolute privilege, the Court again
balanced the interests in confidentiality with that of
disclosure. Id. at 247-48. The Court recognized that
even in civil litigation there is “a constitutional
value in the need for disclosure in order to provide the kind
of enforcement of constitutional rights that is presented by
a civil action for damages, at least where . . . the action
is tantamount to a charge of civil conspiracy among high
officers of government to deny a class of citizens their
constitutional rights.” Id. at 247. It was of
“cardinal significance” to the Court that the
“claim of privilege [was] being urged solely by a
former president, and there [was] no assertion of privilege
by an incumbent president.” Id. at 247
(stating the “[a]bsence of support from the incumbent
[president] at least indicates that ‘the risk of
impairing necessary confidentiality is
attenuated.'” (citation omitted)). After balancing
the interests in confidentiality against the interests in
disclosure, the Court found that the privilege had to yield
to the plaintiffs' showing of need in the case.
Id. at 248-49. Accordingly, the Court remanded the
case for, among other things, in camera review of
the challenged materials by the district court to determine
which materials would be released. Id. at 251.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The
D.C. Circuit&#39;s most comprehensive analysis of the
presidential communications privilege was perhaps in In
re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997). In re
Sealed Case, a criminal matter, concerned a grand jury
subpoena for documents pertaining to White House
Counsel&#39;s investigation of a former cabinet member.
Id. at 734. After surveying the Nixon cases
including Nixon, Dellums, and
Sirica, the Court observed that these cases
“all employed a balancing methodology” in which
the “opinions balanced the public interests served by
protecting the President's confidentiality in a
particular context with those furthered by requiring
disclosure.” 121 F.3d at 753. However, since the
Court's prior precedent established that ...

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